Volume 4 — Johnson's New York Reports

f THIS was an action of covenant. Ihe declaration coniained two counts ; the first was for a breach of the covenant of seisin, the second for a breach of the covenant for quiet enjoyment, contained in a deed from the defendant to the plaintiff, dated the 17th june, 1801, for certain lands in §>ueensburv, in the county* of Washington.

<p>Where two saie of an estate i™vance" and”" v?(í"edC the^re«ápt of the conney, hut the monoy went into' the hands of one it was hold, that answcrahie Ms co-trustee, and misapplied,</p>

THIS was an action brought by the plaintiff, as indorsee and holder of a bill of exchange, against the defendants, as payees and immediate indorsers to the plaintiff. The declaration was on the second of the set of exchange, dated at Barbadoes, 9th July, 1804, for 700l. drawn by Law Mudie on Phyn Inglis & Co. London, at 60 days sight.

THIS was an action of trespass and false imprisonment. The cause was tried at the sittings in New-York, on the 4th June, 1806, before Mr. Justice Thompson. The plaintiff proved, upon the trial, that between February an¿ May, 1804, having been arrested by the defendant on ° a ca. sa. at the suit of one Frederick De Peyster, he executed a bond, according to law, for the gaol liberties, and resided with his family within the limits.

THIS was an action of trover for a vessel, called the William, of Hallóte ell, Kennebeck. The cause was tried at the sittings in New-Tork, on the 24th December, 1807, before Mr. Justice Spencer. J J In the autumn of the year 1804, the plaintiffs were J , 1 owners of the vessel in question, and in November, 1804, sent her on a voyage from the United States to the West-Indies. Swift, one of the plaintiffs, was master.

THIS was an action of ejectment, for a house and lot, in the village of Cayuga. Upon the trial, the plaintiff gave in evidence a deed from Robert R. Parkman to Norton, one of the lessors, dated the 15th of November, 1805, a deed from Norton to John Moffat, dated 12th May, 1806, and a mortgage from Moffat to Norton, dated the same day, for securing the payment of 400 dollars, with interest. All these deeds were for the same premises.

THIS was an action of debt, for a voluntary escape. The cause was tried at the Albany circuit, in April, 1808, when a verdict was found for the plaintiff, subject to the opinion of the court, on the following case. In May term, 1807, the plaintiff obtained a judgment in this court, against Joseph B. Comstock and Samuel Comstock, for 200 dollars, debt, and 8 dollars and 88 cents, costs.

THIS case came before the court, on a certiorari, from the justices court in New-York. It appeared, upon the trial below, that Reed, the plaintiff below, demanded a certain annual payment of 25 dollars, secure by the constitution of the Provident Society to the widows of deceased members of that society.

THIS was an action of trover, for a brig called the America. The cause was tried at the sittings in New~ _ e 0 jLork5 the 19th ot April last, before the Chief-Justice.

THIS was an action of ejectment brought to recover the undivided one-fourth part of a house and lot in the first ward of the city of New-Tork.

THIS was an action of covenant brought by the plaintiffs, as heirs at law of James Hamilton, deceased, against the defendants. The declaration set forth a deed for certain lands in the military tract, made and executed by the defendant to James Hamilton, in his life-time, bearing date the 7th September, 1791.

THIS was an action of ejectment, for an undivided moiety of Lot no. 12. in the town of Hector. The cause was tried at the Seneca Circuit, before Mr. Justice Spencer, the 27th June, 1808; when a verdict was taken for the J . plaintiff, subject to the opinion of the court, on the following case.

THIS was an action on the case, for erecting a dam across a stream or water running through the land, oí the plaintiff, situate in the manor of Rensselaer, and so near the land of the plaintiff, that it was thereby overflowed. At the trial of the cause, the following facts appeared.

<p>Where A. and B. were joint owners of a vessel, and A. voluntarily undertook to get the vessel insured, but neglected to do so, and the vessel was lost, it was held, that 310 action would lie against A. for the non-performance of his promise, though B. sustained a damage by the ^non-feasance, there being no consideration for the promise; but a factor or commercial agent, who is entitled to a commission, will be answerable for not executing an Order to insure.</p>

THIS was an action of assumpsit. Plea, the general issue. A verdict was taken for the plaintiff, at the sittings , . _ . , r .

THIS case arose on a certiorari, and was submitted to the court without argument. The return of the justice stated, that Wiest the defendant below, was summoned to appear before him at the house of Griffin Ransam, to answer to the plaintiff below, (Critsinger). That on the day appointed to appear, the justice could not attend, and sent a note, but ■without signing it, to the house of Ransam; adjourning the court to the 7th of November following.

THIS was an action of covenant. The declaration described the defendant as, “ Samuel P. Lord, junior, otherwise called Samuel P. Lord, junior, and Josiah Barber ,” and stated that the defendant executed the covenant by that name. The defendant pleaded in abatement, and that the bill' might be quashed, because he is known only by the name of Samuel P. Lord, junior, and never was called, or known by the name of Samuel P. Lord, junior, and Josiah Barber.

THIS was an action brought against the defendant, as drawer of a bill of exchange in favour of Franklin, Robinson y Co. on Rathbone, Hughes y Duncan, merchants in Liverpool, indorsed by the payees, to one Townsend, and by him to the plaintiff. The bill was protested for non-acceptance and nonpayment.

THIS was an action of assuinpsit,for goods sold and delivered, and on an insimul coniputassent. The plaintiffs are merchants in Liverpool, and it was admitted that the debt was contracted in Great Britain, that the accounts between the parties is in sterling, and that the interest is calculated at 5 Per cent. the legal interest in Great Britain.

THIS was an action of assumpsit. The cause was tried before Mr. Justice Van Ness, at the sittings in New-York, on the 10th June, 1808. At the trial, William Donaldson and James Main were produced as witnesses on the part of the plaintiff, and were objected to by the defendant as interested, but were admitted by the judge. From their testimony the following facts appeared.

<p>Form of a return to a commission to take oÍTwitnessed”11 when sufficient.</p>

<p>Where a vessel (íxíin-t¡todv^-d age was surveyedy smu condemnuii as not woi'tli the ex-pence of repairs, offered to abante" it was held) w/ii a^ieoóssary £'/ t¡0i Üj>víof to bx -liubited to Uu i..surera,and ought to llave heen pr: duced to them with the other documents, before the commencement of the action, or some account gh en why it was nob, produced.</p>

W. EVERTSON moved for a rule on the court of common pleas, of Dutchess county, to show cause why a mandamus. should not issue, commanding them to vacate a rule enter-e(j jn that court, setting aside a iudgment and execution in e \ ° jo this cause, which was an action on a bail-bond in that court, from the affidavits which were read, the following facts appeared.

THIS was an action of ejectment for land, in the town of Walton, in the county of Delaware. The cause was .ried at the Delaware circuit, on the 24th May, 1808, before . J1 7 Ml*. Justice Tates. The declaration contained eleven de- . . . mises.

THIS was an action of assumpsit brought by the plaintiffs* who reside in Great Britain, on a bill of exchange drawn by Robinson, of St. Kitts, in the West-Indies, in favour of Freeman, on Worswick and Allman, of Lancaster, in England, for 260/. sterling, payable in 90 days after sight. The bill was indorsed by Freeman and by the defendants.

<p>THIS was an action of trespass quare clausum fregiU The defendant pleaded not guilty. The trespass was alleged t0 '3e rormtted on lot No. 80. in the township of Junius, alK"| COunty of Seneca. The cause was tried before Mr. J Justice Spencer, at the Seneca circuit, in June, 1808. It _ was proved, that, in 1795, one Green lived on the lot, and . . began to make improvements ; and- continued to reside on the lot until March, 1805. The plaintiff entered into pos» sess'i°n °f the lot on the 27th February, 1805, under a per» mission from Murray U Mumfordof the city of New- ° J J York, and with the consent of Green, who had previously , , . agreed to surrender up the possession to Murray tsr Mumford; and at the time the plaintiff took possession, Green to^ ^le wi-tness that he consented to it, and that he was to §° out on the 1st March. The plaintiff was proved to be in the actual and peaceable possession of the lot until June, and cut hay on a part of the lot m July, and, while the plaintiff, with others, was mowing there, the defendant came to the plaintiff and told him he must quit the meadow where he was mowing, and struck him with a stick. The defendant, at the same time said, that the plaintiff had possession of the lot, and that he meant to dispossess him, and that, if he could not do it by fair means, he would by his stick. The defendant claimed the meadow, and there were cattle at pasture on the lot. The plaintiff executed a lease to Murray £s? Mumford., for 450 acres, in Junius, for one year, from the 30th March, 1805. He was the only person who actually lived on the lot.</p> <p>The defendant produced a deed from Green to him for all the right and title of Green to the premises in question. The deed was objected to by the plaintiff, but was admitted in evidence. It was proved, that when the deed was executed, Green requested permission to continue in possession until the 1st March, 1805, to which the defendant consented. On the 1st March, 1805, the defendant not being present, Green and his family went out of the house, and immediately returned again, and requested a person present to take notice that he gave up the possession. When this took place, Green removed nothing from the house, but stood at the door, and said, that he delivered up the possession to the defendant; and the plaintiff was then in the house. On the 7th November, 1804, Green gave a writing under his hand and seal to the defendant, acknowledging himself to be in possession of the improvements of lot No. 80. in Junius, which he had sold to the defendant, and promising to deliver up the peaceable and quiet possession of the same to the defendant, his heirs and assigns, on the 1st of March following. This instrument was not, in fact, executed, until two or three weeks after its date, and when it was delivered, the defendant paid Green 700 dollars. A witness also testified, that the plaintiff told him. that he believed that Green had given up the possession honestly to the defendant, and that the plaintiff knew, when he came there, that the defendant had bought the property of Green, and that he was put into possession by Mumford, and that he did not consent to the defendant’s taking possession , that the plaintiff also said, that he was present when the defendant bought the farm of Green for 850 dollars, and that he knew the place belonged to the defendant, but that he meant to be faithful to those who put him in.</p> <p>The judge said, that, unless the plaintiff consented to a nonsuit, he should charge the jury, that the evidence produced by the defendant was sufficient to support the plea of liberum tenementum, and that the same might be given in evidence under the general issue. He then called the plaintiff, who submitted to a nonsuit, with leave to move for a new trial.</p>

THIS was an action of ejectment for land, in the town of Rochester, in the county of Ulster. The cause was tried at the last Ulster circuit, before Mr. Justice Van ° Ness, and a special jury. Eight of the jurors had been on a . „ . r . J J ° J View or the premises. The plaintiff gave in evidence, a patent to Beekman and others, dated 25th June, 1703, called the Rochester patent; and a deed from Hend.

THIS was an action of ejectment for lands, in Chazy, in the county of Clinton.

<p>Where a bill of exchange is drawn in E7zglan(l,andpayablc thcre,the holder can recover oniy 5 per cent. intc~ rest. The acce~tor of a bill oI exchange, in a suit against him, cannot object to a protest for non-payment, that it does not state that a demand wa'~ made on him personally; it is sufficient, if it be stated, that payment was demanded at the house or place where the bill was accepted, to be paid.</p> <p>A motion to set aside a verdict for irregularity, and also on the merits, is an enumerated motion.</p>

<p>Where bail was put in, and the plaintiff entered an exception on the bail-piece, and afterwards proceeded in the cause, without any justification of bail, or new bail, and obtained a judgment, it was held to amount to a waiver of bail, and that he could not proceed against the bail, to whom he had excepted. No formal notice of a waiver of hail is necessary.</p>

<p>Where the subject related to a tio^autUhough concerning the conduct of a foreign minister resident here, hut who had long been superseded, a not allowed.</p>

THIS was an action of ejectment for land, in the town of Berlin, in the county of Rensselaer. The cause was tried before Mr. justice Tates, at the Rensselaer circuit, in Octoher last. The plaintiff produced and proved a lease of the premWs from Stephen Van Rensselaer to jfosiah Godfrey, dated the 29th December, 1790, for the term of sixty years.

A JUDGMENT of non-pros having been entered against the plaintiffs in this cause, it was submitted to the court, whether, as executors, they were bound to pay costs.

<p>Where the defendant in a suit in the Comman Pleas obtained me uA-vviiai gc under the in solvent act, on the same day that a judgment was rendered against him in that court, and being brought up on a ca. sa. the court discharged him, on motion, this court held the proceeding to be regular. A party entitled to relief by an audita querela, may be relieved on mo? tion.</p>

<p>Where an ac-Ho.’ brought pfformerfor'tre«c‘q prevent e? cesáve ami deas a declaration assumpsit for So much money to the use of'the séffieiem ^That form. of .deoiarlug is given to the losing party only. The statute gives no form of declaring where a common informer is plaintiff; and in' an action founded on a statute, the plaintiff' must state specially the cause of action arising under the statute.</p>

THIS was a case of a forcible entry and detainer, brought before this court by certiorari. From the return to the J certiorari, the following facts appeared.

THIS was an action of ejectment for lands in the city of Hudson, The cause was tried at the columbia circuit, before Mr. Justice Van Ness, in October, 1807, At the trial, William Coventry, a witness for the plaintiff, testified, that he was 48 years of age, and lived upon the Salisbury patent; that his father came there in 1760; and John M’Comb was in possession of lands south of him.

THIS case came before the court, on the return to a writ of error, from the common pleas of Dutchess county. The suit below was on a bond given by the plaintiffs in error, to the defendants, as overseers of the poor of Rhynebeck, to indemnify the town against the maintenance of a bastard child. The defendants below pleaded, 1. Non est factum, and 2. Performance of the condition. The plaintiffs replied, setting forth a breach, and issue was joined thereon.

THIS was an action of ejectment, upon a mortgage, executed on the 1st May, 1807, by Andrew Wilson, junior, to the lessor of the plaintiff. It was admitted, that the mortgage debt was due and unpaid, and that the defendant was in possession, without the privity or consent of the plaintiff. Wilson, the mortgagor,- in February or March, 1808, conveyed the premises, in fee, to one Daniel Wilson, subject to the mortgage.

THIS was an action of ejectment. The cause was tried at the Ulster circuit, before Mr. Justice Van Ness, on, the 3d October, 1808. The lessor of the plaintiff claimed title to the premises' in question, under a purchase made at a sheriff’s sale.

IN error, on certiorari. Fitch brought a suit against . ' , ° Hutchins and Cary, before the justice, by warrant. Hut-chins was returned taken, and Cary not found, and HuU chins agreed to go to trial. Fitch declared on a promissory note given by both defendants to Joseph Rundle or bearer, for 25 dollars, payable on demand. Hutchins pleaded non assumpsit, and a jury, at the request of the plaintiff, was called.

<p>THIS was an action of assumpsit. The declaration contained two counts ; one on a promissory note, dated the 14th June, 1806, given by the defendants to Brown and Olmstead, for 1,249 dollars and 56 cents, payable on demand, and indorsed by Brown and Olmstead,, to the plaintiff. The second count was for money had and received, to the use of the plaintiff. Plea, non assumpsit, with nqtice of set-off. The cause was tried at the Onondaga circuit, in September, 1808. The note was signed S. Broxvn, jun. for Mickles & Co. and his authority to make the note was proved.</p> <p>The indorsement on the note was in the hand-writing of . Olmstead, and in the words following : “ November 15,1808. corrtents to Benjamin Sanford. William Olmstead, for ^he late firm of Brown and OlmsteadThe partner-1 ship of Brown and Olmstead had been dissolved by mutual consent, before the indorsement was made; At the time of the dissolution, it was agreed, that Olmstead should take the Stock in trade, collect and receive the outstanding debts; and pay the debts due by the partnership ; but no authority to indorse notes, or to use the name of the firm in any manner, was shown. The defendants’ counsel objected, that Olmstead having no authority to indorse the copartnership name, after a dissolution of partnership, the plaintiff could not recover on the note, but this objection was overruled* The defendants then offered to prove, that the note was given by Brown, the clerk of Mickles & Co. for the balance of accounts adjusted by him, and in which he included not only the demands of Brown & Olmstead against the firm of Mickles & Co. but also what was due from the defendants individually, and that the clerk had no authority to adjust any demands against the defendants, in their separate capacities, but this evidence was objected to and overruled. The defendants then offered to prove; that in the adjustment of the accounts for which the note was given, there were several errors, which, if corrected, would materially reduce the balance, and the amount due on the note, but this testimony was objected to, and overruled by the judge. Several payments were indorsed on the note, the last of which was on the 25th October, 1806. The jury found a verdict for the plaintiff, for the balance due on the note, after deducting the payments indorsed.</p> <p>On the motion to set aside the verdict, and for a new trial, two questions were raised:</p> <p>1. Whether one partner, after a dissolution of the partnership, can indorse a note given to the firm, so as to enable the indorsee to maintain an action in his own name against the firm?</p> <p>2. Whether a note, payable on demand, indorsed five months after date, on which sundly payments are indorsed at the time, is to be considered as due at the time of its being negotiated, so as to entitle the makers to set up any defence against the indorsee, which they might have done in an action brought by the original payee?</p>

IN error, on certiorari. The return stated, that Van Antwerp brought an action against Kosekrans. On the turn of the summons, Van Antwerp appeared by attorney, being out of the county at the time, and which was known to the justice ; but lio proof of it was made. The plaintiff below declared, that the defendant had sold him a set of harness, which he warranted to be well made, and averred that it was not well made, but useless, and also for money had and received to his use.

THIS was an action of ejectment for land in Philips-town, .in the county of Dutchess. The cause was tried at the Dutchess circuit, before Mr. Justice Van Ness, in September, 1808. The plaintiff gave in evidence a mortgage from Samuel Dickenson to Roger Barton, dated the 8th March, 1779, for 160 acres of land, including the premises in question, being one quarter of an acre, made to secure the payment of 865 dollars, in two years.

■ THIS was an action of assumpsit. The declaration stated, that on the 26th February, 1808, the defendant made an agreement in writing with the plaintiff, whereby she agreed to give the plaintiff the refusal of the farm on which she lived, with the south half of the house, for the term of two years, from the 1st April, 1808, together with the stock, &c. at the following rate, viz. for the first year, 600 dollars, 140 of which to be paid in November, 160 dollars in December,…

THIS was an action of assumpsit. The declaration stated, that one Zachariah Hoffman, now deceased, was, in his life-time, justly indebted to the intestate, in his lifetime, in divers sums of money, &c. that the intestate, in his life-time, was about to sue the heirs of the said Hoffman, for the recovery of the sums so due to him; “ that thereupon the said Jacobus Vanderlyn, in consideration that the said i?.

THIS was an action of assumpsit for money had and • . .V, received to the use or the plaintiff. The following facts appeared from the evidence at the trial. The farm of the plaintiff was about to be sold by t]le sheriff, on an execution issued out of this court; and 1 one William Swart agreed with the plaintiff to bid off the farm and advance the purchase-money, and to reconvey the farm to the plaintiff on payment of the money so advanced on the sheriff’s sale.

THIS was an action of assumpsit. The plaintiff dedared on a promissory note, dated April HQ, 1805, drawn by the defendant, C. L R. payable to C. C. Roosevelt & Co. and indorsed by the said C. I. R. in the name of C. C. R. Co. to the plaintiff, who resides in the city of Netv-York. When the note became payable, it was regularly protested for non-payment, and notice given to C. C. Roosevelt. A judgment by default was entered against C. I Roosevelt.

THIS was an action of assumpsit. The declaration was as follows: “ For that whereas before, and at the time °f making of the promise and undertaking and the agreements herein after mentioned, the said plaintiffs were joint dealers and partners in trade, under the firm of Bailen A. .

<p>THIS was an action of assumpsit. The declaration contained a count on a promissory note, in the following words : 461 promise to Capt. Samuel Thompson, 80 dollars, for value received. Montego Bay, April 21, 180/.' Thomas Ketcham and also the money counts. Plea, non assumpsit, with notice, pursuant to the statute, that infancy would be given in evidence under the general issue. The cause was tried at the Ulster circuit, in September, 1808, before Mr. Justice Van Ness.</p> <p>It was proved, at the trial, that the defendant was under 31 years of age, when he executed the note.1 The defendant acknowledged to one of the witnesses of the plaintiff, that the plaintiff lent him the 80 dollars at Montego Bay, in the island of Jamaica, to pay his bills on shore, and that he did not know what he should have done without the money. The money which the defendant borrowed of the plaintiff, was, by agreement, to be paid in New-Tork, on their arrival, and it appeared that both the plaintiff and defendant arrived in New-Tork at the same time.</p> <p>It appeared, that the defendant was the agent of the owner of a vessel on a voyage from New-Tork to Jamaica, and that most of the money he borrowed of the plaintiff was laid out in purchasing necessary articles for the ship.</p> <p>The judge charged the jury,- that ás the money was not lent to purchase necessaries for the infant, the contract, if made here, could not be enforced, and that the defendant would be entitled to a verdict; but as the contract was made in Jamaica, it must be governed by the laws of that island; and as there was no proof that the laws of Jamaica protect infants against such contracts, the plaintiff was entitled to recover. The jury, accordingly, found a verdict for the plaintiff.</p> <p>A motion was made to set aside the verdict, and for a new trial.</p>

ON an affidavit presented to the court, at the last term, stating, that it was generally reported, and that the defendant believed, that Mr. Woodward was practising in the county of Columbia, as an attorney of this court, in the name of William Miller, Esq. one of the attornies of the court; and that his name was so used in the case of Jackson, ex dem.

In error, on certiorari. On the loth March, 1805, one Tarpenning complained to three justices of the county of ■* ° r J J ■ Cayuga, that Polly Powers, the plaintiff in error, had felo- . , niously stolen a handkerchief, the property of the cornplainant.

IN error, on certiorari. Stewart sued Gage in the court below, in trespass, for taking out of his waggon a barrel, containing; 10 gallons of whiskey. Upon the trial, Stewart offered one Andrews as a witness, the defendant objected to his competency, inasmuch as he was the owner of the whiskey, and had sent Stewart to bring it.

THE indictment and proceedings in this cause were removed to this court by certiorari. The prisoner was indicted at a special sessions, held in the city of New-York, in February, 1809. There were several indictments found against him for grand larceny, to which he pleaded not guilty, and by his consent the same jury were sworn to try them all. After a trial on the first indictment, the jury withdrew to deliberate.

AT the last general sessions of the peace, held in the _ ° u 1 city of New-Tork, Howell, the prisoner, who was now , brought up on a habeas corpus, was indicted with one James Mitchell, for forgery. The indictment was for Urging “ a certain order for the payment of money,” ancj the check was set forth as follows : “ New-Tork, 27th 1 February, 1809. Cashier of the Merchants’ Bank, in the , , ,, city oi Nezo-2 ork. Pay 4,095, or bearer, 685 dollars 20 cents.

<p>In an action on the Sfch section of the act to prevent champerty and mainJffig in’his iot'neSre the proviso. Where a clause or section of a statute giving an action for any offence, contains a proviso or exception, which is against theplaintiff,ov ismatteref defence or justification for the defendant, the plaintiff need not negative the proviso in his declaration,</p>

THIS was an action brought to .recover damages for the non-delivery of certain goods shipped at Liverpool, on board of a vessel, of winch the defendant was master, and consigned to the plaintiff on his own account. The defendant having been held to bail, Griffin, in his behalf, now moved for his discharge, on filing common bail. It appeared that a similar application had been made to the recorder of New-Tork, in the last vacation, who had refused to discharge the defendant.

LYNCH, for the plaintiff, moved to amend the capias se? respondendum in this cause, which was sued out on the 15th April last, and returnable at this term, and the defendant arrested thereon. The writ was tested by mistake in the year 1808, instead of the year 1809.* He cited Carty v. A.silly ^ as a case in point. ,

THIS was an action of ejectment. The cause was tried at the Orange circuit, before Mr. Justice Thompson, the 5th September, 1808, when a verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on a case containing the following facts: George Denniston died seised of the premises in question, on or about the 10th January, 1804, having previously made his will, dated the 21st December, 1803.

<p>Costs of attendanee of ivif.r,(loscs from another ^|te5 ll0w tax"</p>

<p>THIS was an action of trespass guare clausum fregit, for breaking the plaintiff’s close, called the south-east meadow, in lot No. 80. in the township of Junius, on the 20th day of July, 1805. The defendant pleaded the general issue, and liberum tenementuvu,</p> <p>The cause was tried before Mr. Justice Spencer, at the Seneca circuit, in June, 1808.</p> <p>The principal facts in this case were the same as in that of Hyatt v. Wood, (ante, 150.) The following are all the facts which it is thought necessary to state in addition : Hugh Jackson, as witness for the plaintiff, testified, that Jackson and Bunnel occupied that part of the Green farm which is south of the road, except the pasture and the south-east meadow; that the plaintiff occupied the pasture; that the plaintiff had mowed some grass himself in the south-east meadow, and that the witness mowed under the plaintiff, in the same meadow, for a day or more, when the defendant came to the meadow, and threatened to turn the witness out if he continued to mow, when the witness left the meadow, and the defendant mowed the grass. The plaintiff had other persons at work for him, in other parts of the farm, in June, 1805.</p> <p>Reuben S. Morris, a witness for the defendant, testified, that on the 27th February, 1805, he saw the defendant in possession of lot No. 80. in Junius ; that Green was present, and gave his consent to the defendant, that he should enter into possession; that Green was then in possession ; that the possession was given to the defendant in behalf of Murray and Mumford, and in consequence of an agreement between them, Green, and the defendant.</p> <p>The judge charged the jury, that in order to maintain the action, it, was not sufficient for the plaintiff to show a right to the possession merely, but he must prove that he had the actual possession at the time of the trespass complained of, and that, in his opinion, the weight of evidence was, that the defendant was in the actual possession of the south-east meadow, and that the defendant was not, therefore, liable to the action.</p> <p>A motion was now made to set aside the verdict and for a new trial.</p>

ON the second day of the last February term, Emmet moved for a habeas corpus to bring up the body of yfohn V. N. Tates, a prisoner in the custody of the sheriff of Albany. The motion was grounded on sundry affidavits which were read. The Court said, that as it was a matter of importance, they would take until the next day, at the opening of the court, to consider whether it was proper to grant the motion.

THIS was an action of assumpsit for money had and received to the use of the plaintiff; being the sum of 1,452 dollars, paid by the plaintiffs to the checks or drafts of the defendant, between the 19th March and the 20th April, 1803, inclusive.

THIS was an action of ejectment for lands in the town of Rochester ; it was tried at the Ulster circuit, before Mr. Justice Van Ness, and a struck jury ; eight of the jurors having been on a view of the premises. The plaintiff offered in evidence a will of Josephat Dubois, dated 4th September, 1737, and it was proved by showing that the witnesses were dead, and proving’ their hand-writing; and that the testator died on the 12th of September, 1737.

<p>THIS was an action of debt on a bond, dated the 16th June, 1799, conditioned, thatif at any time from the date of the obligation, until the 16th July, 1809, the cellar wall, or two stacks of chimneys, in a house built by the defendant for the plaintiff, should settle, give way, or fall down from the place where they were then built, that then the defendant, his heirs, &c. should well and ’ 1 substantially rebuild the same, at his own expense, and , # * pay the plaintiff all damages occasioned by their settling, . . ° giving way, or tailing down, &c. The plaintiff, in his declaration, after setting forth the condition of the bond, averred, that the ccllai wall and chimneys, did, on the 1st January, 1800, settle, give way, and fall down, and that the defendant, though, often requested, did not rebuild the same, nor pay the damages, &c.</p> <p>The defendant pleaded non est factum ; and traversed the breach assigned^ and the request to rebuild, or pay the damages;</p> <p>The cause was tried at the Rensselaer circuit, in October last before Mr. Justice Yates.</p> <p>The plaintiff proved, that the chimneys settled and cracked, so that they took fire; that the defendant lived within thirty rods of the house; that the fire was a subject of public conversation in the neighbourhood, and that the defendant was frequently at the house, after the fire.</p> <p>A witness testified^ that about a year before, Messrs. Comstock and Walworth called on the defendant to repair the wall and chimneys, and demanded payment for the damages.</p> <p>The judge was of opinion, that to entitle the plaintiff to recover, it was requisite for him to prove a notice to the defendant of the situation of the wall and chimneys, and a request to repair them according to the condition of the bond.-</p> <p>The plaintiff then offered to prove that Comstock and Walworth had purchased the house of him in 1800, and that he assigned the bond of the defendant to them, by an indorsement thereon, under his hand and seal, and that notice thereof was given to the defendant; that a short time before the present action was commenced, the defendant went to the house and examined the situation of the wall and chimneys.</p> <p>The judge decided that this evidence was inadmissible, and that a notice and request to the defendant from the plaintiff himself must be proved, before the plaintiff could recover.</p> <p>The plaintiff was thereupon nonsuited.</p> <p>A motion was made to set aside the nonsuit.</p>

KIRKLAND, for the defendant, moved for leave to enter an exoneretur on the bail-piece, on which the present . ... suit was brought.

<p>THIS was an action of debt, on a bond. The decíaration was in, the usual form., The defendant pleaded , 1 1. non est j actum; and m his 2d plea, craved •3yer of the condition, which was as follows, “ that if the above bound William Lee and Joseph Mullikin, jointly, or either of them, their heirs, &c. shall, within fifteen days, from the day that James Elliot, of the city of Nexv-York, may, or shall receive a discharge, by virtue of any act of insolvency, agreeable to the statute of this state, deliver to the said Charles Bruce, or to his heirs, or assigns, James Elliots notes, with approved indorsers, for the sum of 1,231 dollars and 36 cents, one third thereof, in two months from the expiration of the said fifteen days, one third in four months, and the other third in six months, from the time aforesaid ; then the above obligation to be void,’’’ &c.</p> <p>They then pleaded, that they ought not to be charged, &c. because they say, that before the date of the said bond, to wit, on the 17th March, 1808, the said James Elliot, being an insolvent debtor, within the true intent and meaning of the act of the legislature, &c. did, in conjunction with certain of his creditors, present a petition, setting forth, &c. to the recorder of the city of New-York, who thereupon, made an order, directing notice to be given in the gazette, for the creditors of the said Elliot, to show cause, before him, on the 11th May, 1808, why an assignment of the said insolvent’s estate, should not be made, and he be discharged according to the act, &c. On the day appointed, the plaintiff, as one of the creditors, appeared before the recorder, and showed cause against the assignment and discharge of Elliot, and the plaintiff and insolvent agreed that the bond in question, should be given to the plaintiff, and that he, in consideration thereof, should withdraw his opposition to the assignment and discharge of the insolvent, and that the said bond was given in pursuance of such agreement, and for the consideration aforesaid; and so the said bond is void, &c. wherefore, See.</p> <p>The third plea, was to the same effect: there was a general demurrer to the second and third pleas, and joinder.</p>

ON certiorari, from a justice’s court. Burger brought an action of trespass, before a justice of the peace, against Kortright, for damage done by his cattle on the land of Bürger, by reason of Kortright's not having made his share or part of the partition fence, between the parties, and also for the expense of making the fence, which Kortright, though requested, had refused to make.

<p>THIS was an action of covenant. The declaration stated, that on the 25th July, 1792, one Thomas Berry, executed a bond to the plaintiff, for 96/. conditioned to pay 48/. on the 1st November, 1798, with the interest yearly, to be calculated from the 1st November, 1791; that on the 3d December, 1807, the defendant executed a writing, under his hand and seal by which he covenanted, and promised to and with the plaintiff, that the principal and interest of the bond given by Berry, should be paid to the plaintiff, in twelve months thereafter, &c. averring a breach, &c. with the common conclusion.</p> <p>There was a general demurrer to the declaration, and</p> <p>Sudam, in support of the demurrer, contended, that as this was a promise, on the face of it, to pay the debt of another, and without consideration, it was void by the Statute of frauds. It being under the hand and seal of the party, made no difference; for where the promise, on the face of it, is void by the statute, a seal cannot render it valid.</p> <p>. In Low v. Peers,* it was decided, that although from the deliberation and solemnity which accompanies the . ¡. i,,, . , execution 01 a deed, the law, presumes a consideration: yet, that this doctrine applies only where the deed is good on the face of it: for a consideration cannot be presumed to support a deed, which is void on the face of it.</p> <p>This court have decided, that the consideration, as well as the promise, should be in writing.† If the statute requires that the consideration should be in writing, or expressed on the face of the agreement, it cannot be implied from the mere seal.</p>

THIS was an action of ejectment, brought to recover lands, which include the Mineral Spring, in the village of New Lebanon, in the county of Columbia, in the possession of the defendant. The cause was tried at the Columbia circuit, in October, 1808.

IN error on certiorari, from a justice’s cotirt. Dakin sued Holden, before a justice, and declared that he, Dakin, purchased two kegs of paint, for Spanish brown, of 56 pounds each, at 9d. per pound, and two kegs of white lead, of 28 pounds each, at Is. 7d. per pound, which paints were adulterated, and of an inferior quality, and in fact were not Spanish brown or while lead., nor good for any thing. The defendant pleaded not guilty.

In error on certiorari, from a justice’s court. J Patten, the defendant in error, sued Simpson, the plaintiff m error, m the court below, on a promise, that it he, Patten, would forbear to sue one J. S. the present plaintiff in error would pay the defendant in error the amount of the note of J. S. to the defendant in error, which was then due, as soon as he could sell an acre of land, belonging to the said J. S. which he was authorised to sell; and the plaintiff averred that…

<p>IN error on certiorari, from a iustice’s court, °</p> <p>e e After the parties had appeared in the suit below, and „ . . were ready to proceed to trial, they agreed to submit th e cause to the arbitrament of the justice and another person; and that their award should be final, and conclusive, and that the justice should enter a judgment for the sum awarded.</p> <p>After the arbitrators had agreed on the balance due to Hewit, of 11 cents, but before the same was made known, the justice asked the parties, whether a judgment should be entered, agreeably to the award, to which they agreed, and the justice thereupon entered a judgment for the sum of 11 cents, in favour of Hewit, and for the costs.</p>

THE defendant was convicted, at the last oyer and _ . terminer, in the county of Washington, of a burglary. Judgment was respited, in order to take the opinion of, this court, whether the case amounted to burglary. The facts were these: The prisoner broke open a store, belonging to Halsey Rogers, in the night-time. The store was at the distance of twenty feet frqm the dwelling-house of Rogers, and no person slept in the store.

THIS was an action of trespass on the case, for debauching the plaintiff’s daughter. The cause was tried at the Washington circuit, and a verdict found for the plaintiff, for 1,025 dollars. The plaintiff’s daughter was a witness on the part of the plaintiff, at the trial.

THIS cause came before the court, on a writ of error, from the coipmon pleas of the city of New-Tork. Riker, the defendant in error, brought an action of assumpsit, against Bunn, the plaintiff in error, in the court below. The declaration contained three counts.

<p>THIS was an action of assumpsit, for money had and received by the defendants to the plaintiff’s use. The defendants gave a cognovit actionem, for 1,900 dollars, subject to the opinion of the court upon the following case, agreed between the parties.</p> <p>The plaintiff was owner of the ship Egeria, and had insurances made, on the 9th February, 1808, by the defendants, upon the ship, and upon the freight of all goods, wares and merchandises, laden or to be laden on board the said ship, on a voyage, “ at and from Calcutta, with liberty to touch at Madras, for trade, and to take in a part of her cargo,” beginning the said adventure “ at and from Calcutta, and to endure until her arrival at Nezv-York, valued at the sums insured respectively.”</p> <p>In June, 1807, the defendants had insured for the plaintiff the same ship, on a voyage, at and from Nezv-York to Madeira, and at and from thence to Calcutta, with leave to touch and trade at the Cape of Good-Hope, and at Madras. The ship sailed from Nezv-York, arrived at Madeira, and sailed from thence, on the 29th August, 1807, touched at the Cape of Good-Hope, and from thence went to Madras, where she arrived on the 5th day of May, 1808, and sailed from thence on the 15th day of July, 1808, direct to Nezv-York, without going to Calcutta,</p>

THIS was an action of trespass on the case. The 1 declaration contained three counts.

THIS was an action for money paid, laid out and expended by the plaintiff, for the defendant, at bis request. The defendant pleaded non assumpsit, and the statute of limitations. The cause was tried at the last sittings in New-Tork.

THIS was an action of debt. The declaration stated, 7 that in April term, 1798, the plaintiff recovered a judgement, in this court, against Isaac Bull, for 458 dollars and 2 cents, which judgment is still m force, &c. that On the 11th May, 1798, the plaintiff sued out a ca. sa« on the said judgment, returnable before the said justices, of the said court, at, &c. on the last Tuesday of July next; which was, on the same day, delivered to James Dole, then the sheriff of the…

THIS was an action of assumpsit. The declaration stated, that the defendant, in consideration that the plaintiff, at the special instance and request of the defendant, would credit one Hernán Dickenson, goods, &c. to the amount of 800 dollars, the defendant would be security: for the payment, &c. and averred, that the plaintiff did deliver to Dickenson, goods, to the value of 800 dollars, &c. Plea, non assumpsit.

as A MOTION was made on the part of the defendant, hail of William Kersey, for leave to surrender his principal, and that an exoneretur be entered on the bailpiec(?- The defendant stated in his affidavit, that he resided in Steuben county, and that the writ in the original cause was returnable in July term, 1803, and that a short time J thereafter he became bail, and the bail-piece was filed in the clerk’s office at Albany.

<p>On a motion to change the raniie, on account of material ivitnesses residing in another county, the dcfendthe° uflraber^of the witnesses, otherwise, the court cannot in.-* tend that he has' more than one»</p>

<p>Where a represenUtive in cungrriss is libelled in respect to his official conduct, may’be awarded!</p>

<p>In ejectment, a person who has no claim, or any subsi:-tivg title to the premises in question, will not be allowed to be made a lessor.</p>

IN error, from the common pleas of Ulster. The writ of error in this cause was returnable on the first day of the present term. Sudara, attorney for the defendant in error, now moved, that all proceedings on the part of the plaintiff in error be stayed, until security for the costs shall be filed.

THE defendant in this cause was arrested on a capias ad respondendum, containing an ac etiam clause, upon promises, for 500 dollars, returnable at the last term, and special bail was put in and perfected, in conformity to the writ. The plaintiff, afterwards, declared against the defendant in an action of account, and a rule to plead was entered thereon. A motion was now made, in behalf of the defendant, to set aside the proceedings for irregularity.

A MOTION was made in behalf of the defendant, to set aside the proceedings in this cause, for irregularity, on an affidavit, that the defendant was never arrested. The plaintiff was a deputy of the sheriff of the county of Delaware. In his affidavit, he swore that he did arrest the defendant, and explained to him the nature of the writ; dhat he served the writ himself, as a deputy-sheriff, but did not require any bail.

<p>THIS was an action for a breach of promise of marriage, tried at the last Madison circuit, when the jury found a verdict for the plaintiff, for 439 dollars and 58 cents.</p> <p>Gold now moved to set aside the verdict, for the misbehaviour of the jury. He read the affidavit of the constable, who was sworn to attend the jury, while they retired tp deliberate on their verdict, who stated, that the jurors agreed, that each of them should mark down such sum as he thought fit to find, and the sum total being divided by twelve, the quotient should be the verdict; and that the verdict was so ascertained.</p> <p>Similar affidavits of two of the jurors, were also read.</p>

HAMILTON moved that the default entered in this cause should be set aside, and O'Neal, the tenant in possession, be admitted as defendant in the place of the cncmol piprtnr casual ejector* The declaration in this cause, with the notice, was served on O'Neal the Wednesday preceding the last J 1 ° May term, who, during the same week, employed an attorney to defend the cause.

<p>A special jury will not bs granted, in an action for a libel against a person, who is a public officer», unless the libel relates to his o/jicial conducts See a?ite9 'Thomas ve Itumseu,</p>

<p>Where the plaintiff undertook to bear all the expenses of bringing the defendants witnesses to the county where the ‘venue is laid, the motion to change the venue, was denied. On a motion to change the venuei no costs are allowed on either side.</p>

<p>After a judg* merit by default, against the casual ejector, in ejectment) the landlord may be let in, to appear and defend; and it be be an alien? he is, at the time when he is let in to defend, in season to petition for the removal of his cause into the court of the United States. Where actions of ejectment, after a judgment against the casual ejector, are removed into the circuit court of the United iSfeotefjthis court will order all further proceedings on such judgment to stay, until the further order of the court.</p>

<p>THIS cause came before the court, on a writ of error, from the supreme court. The suit below was for a libel, in which the plaintiff in error suffered a judgment by default, on which damages were assessed by a jury, and final judgment thereon entered in the supreme court, in November term, 1806. (See 2 Johns. Rep. 63.) Errors were assigned at the last session of this court, and there was a joinder in error.</p> <p>The defendant in error, afterwards, moved in the court below, to amend the original record, and that court ordered the amendments to be made accordingly, on payment of costs. (See 3 Johns. Rep. 95. 99.)</p>

<p>IN June, 1803, Jesse Hopkins, of the state of Connecticut, being in the island of Barbadoes, made a con-. e tract with George Cruden, an agent for the supply , . 'oi the British troops m the West-Indies, for the delivery . ,, oi certain cargoes of live cattle and hour. About four cargoes a month were to be shipped from Hew--haven for the British head-quarters in the West-Indies, which were at Barbadoes. Cruden agreed to advance about one-half of the amount, or 1,000 dollars on each cargo; and on the 29th June, 1803, wrote to his agents in New-York, the appellants, trading under the firm of John M’’ Vichar Es1 Co. informing them of the contract he had made with Hopkins, and that he had authorised him to draw on them for the 1,000 dollars advance on each cargo shipped, on sending to them a copy of the bill of lading, and the policy of insurance, by way of security in case of the non-arrival of the cargo. The advances were to be made in 30 days after the documents mentioned as security were lodged witb..MíVickar Ss? q0(¡ jn a postscript to the same letter, Cruden agreed to r 1 1 ' ° dispense with the transfer of the policy of insurance by J Hopkins, and that MlVickar y Co. might receive other , . good and satisfactory security, for the money advanced by them, on the cargoes actually shipped, and duly consigned to Cruden.</p> <p>Hopkins afterwards agreed with’ the appellants, instead of delivering the policies of insurance, that the respondents and James Watson, since deceased, who were then partners, under the firm of Oliver Wolcott & Co. should become sureties to the appellants, for the delivery of the cargoes. Accordingly, on the 20th September, 1803, an agreement was entered into between Oliver Wolcott & Co. in behalf of Hopkins, on the one part, and John M'Vickar & Co. in behalf of George Cruden, of the other part, by which, after reciting the agreement between Hopkins and Cruden, Oliver Wolcott & Co. engage, on receiving the acceptance of M'Vickar & Co. of the drafts of Hopkins, for 1,000 dollars, at 30 days on account of the cargoes of cattle shipped, and consigned to Cruden, to reimburse M'Vickar & Co. each and every advance so made, on whatever cargoes of cattle, as should not arrive to the hands of Cruden, within 30 days after advice of the same by either party, together with the charge of interest and commission, by M'Vickar & Co. on the amount of such advances. This agreement was signed by the appellants and respondents, in their proper names.</p> <p>Jesse Hopkins having entered into a partnership with Asa and Daniel Hopkins, under the firm of Jesse Hopkins & Co. they commenced the shipment of cagoes of cattle, which were consigned to Cruden, at ■Barbadoes, or whatever island in the West-Indies should become British head-quarters, and to proceed from thence to any other island, if required by the consignee. Four of the cargoes so shipped, gave rise to the present controversy; more particularly three cargoes, shipped in the months of September, October arid. December, 1803, and on which Hopkins drew .bills on the appellants, for 1,000 dollars each, and which were accepted by them, Upon the acceptance of each bill, Oliver Wolcott & Co. gave to the appellants a receipt; and all the bills so accepted were paid to Oliver Wolcott & Co.</p> <p>The three cargoes above mentioned, on account of the vessels falling to leeward, did not arrive at Barbadoes but reached some of the leeward islands in the West-Indies, where they were sold, on account of the shippers. These cargoes, however, were tendered to the agents of Cruden, at the different islands where they arrived, but were refused.</p> <p>By a letter, dated the 15th July, 1804, Cruden gave notice to the appellants, that the three cargoes of cattle had not arrived at Barbadoes; and that he would not pay or allow the appellants the advances made upon them, but that they must look to the security they had taken, for their reimbursement. This letter was received on the 5th September, 1804, and was the first notice which the appellants had of the non-arrival of the three cargoes of cattle at Barbadoes. 'About the 1st October, 1804, (John M'Vichar having been absent from New-York, at the time the letter was received, and for about three weeks after,) notice was given by the appellants to the respondents, of the non-arrival of the cargoes ; and they were requested to reimburse the amount of the advances, with the interest and commission.</p> <p>After repeated applications, the respondents gave their final answer, that they would not make the reimbursements demanded, on which a suit was commenced against them by the appellants, in the supreme court, to recover the amount. By consent of the parties, in December, 1806, the cause was referred to three referees, and the usual rule entered for that purpose. ' The cause was fully heard and discussed before the referees, two of whom, on the 28th January, 1807, made a report in favour of the appellants, for 3,740 dollars; the other referee did not concur in the report. Soon after, and before any judgment could be obtained on the report, the respondents filed their bill in the court of chancery, against the appellants ; and on the 4th May, 1807, an injunction was awarded, to restrain the appellants from prosecuting their suit at law, until the further order of the court of chancery.</p> <p>The bill stated the contract between Hopkins and Cruden, which it charged, was not formally reduced to writing; but the principal conditions of it were expressed in two letters from Cruden to Hopkins, dated at Barbadoes, the 24th June, 1803, which were set forth. In these letters, among other things, Cruden says: " every cargo, on its arrival at Barbadoes, or any other island where I have an agent resident, shall be examined by that agent on my part, and any creditable and respectable person that may be appointed on your part; and whatever weight, on an average, they may agree upon, as the real weight of the cattle, to the best of their judgment, that weight I agree to receive the cattle at, and to account to you accordingly,” &c. “ If it shall, at any time, happen, that the cattle should, from encountering hardships on the passage, from being shipped in bad order, or from any other cause or accident, arrive in bad condition, &c. so as to render them unfit for the use of the troops, it must remain with me, or my agents, in all such cases, to reject the cattle, in toto, or only to allow such a price for them, as may be agreed on between you or your agents, as sellers, and me or mine, as buyers,” &c. The bill then charged, that by the actual agreement, verbally made between Hopkins and Cruden, cargoes which might fall to the leeward of Barbadoes, and arrive at other islands where Cruden had agents resident, should be received by those agents, and paid for by him ; that Cruden, after a full knowledge that the three cargoes had fallen to leeward, and of the facts before stated, as to the shipments, advances and security given by the respondents, made voluntary remittances td Hopkins, to the amount of 18,000 dollars, and upwards,’ The bill further charged, that the appellants had been reimbursed by Cruden, for their advances on the three cargoes of cattle; that Jesse Hopkins, and Hopkins & Co. had become insolvent; that the suit at law was prosecuted by the appellants for the benefit of Cruden, who, . with Jesse Hopkins and Daniel Hopkins, were made defendants. The bill prayed for a discovery and for relief, and a perpetual injunction, to restrain the prosecution of the suit at law.</p> <p>The appellants, in their answer, denied all knowledge or information of the nature and terms of the contract between Hopkins and Cruden, except what was derived from the letter of Cruden to them, on the 29th June¿ 1803 ; that they were ignorant of the remittances made by Cruden to Hopkins, and Hopkins 8? Co. They denied that Hopkins 8? Co. were insolvent, though they were somewhat embarrassed in 1804; but afterwards continued their ordinary business, and paid their debts ; that the -appellants were authorised by Cruden to draw on Phyn, Inglis 8? Co. of London, to the amount of 10,000 dollars per month, to reimburse their advances made on account of Cruden ; that they could not draw for more than that sum in any one month, or make up in one month, what their drafts in another month fell short of that sum. That they drew bills on Phyn, Inglis 8? Co. for all their advances, including the advances made on the bills drawn by Hopkins, on the three cargoes of cattle; that the bills of Hopkins were not presented for acceptance, until after the- appellants had, in each instance, accepted bills drawn by Cruden, for more than the 10,000 dollars in each month; that Phyn, Inglis 8? Co. refused to accept their bills, to the amount of 40,000 dollars, on the ground, that the appellants had drawn beyond the prescribed credit of. 10,000 dollars per month ; that thesc: bills being protested for non-acceptance and non-payment, were afterwards paid by Phyn, Inglis 8? Co. for the honour of the appellants, as drawers ; that they are still liable to Phyn, Inglis 8? Co. for the amount so paid for their honour, and that their credit on Phyn, Inglis 8? Co. on account of Cruden, was withdrawn on the 24th January, 1804, and the accounts between the appellants and Phyn, Inglis 8? Co. were unsettled. The appellants further stated, that Cruden had constantly refused to allow them the advances made to Hopkins, on the bills in question, and that Cruden was still indebted to them, in a large amount; and they denied, that the suit at law was instituted or prosecuted, for the benefit of Cruden, or with his knowledge or concurrence; but was solely for their own benefit.</p> <p>Cruden did not put in an answer, though measures were pursued to have the bill taken pro confesso against him, for a default of appearance. On the filing the answer of the appellants, a motion was made in the court below, in October, 180/, to dissolve the injunction ; and the bill and answer were read, and the motion argued by counsel. On the 30th October, 180/, the chancellor ordered that the injunction should be continued; that the appellants should take nothing by their motion, and pay the costs of resisting it. From this order they appealed to this court.</p> <p>The reasons for the order were thus assigned by</p> <p>The Chancellor. The complainants had, in the first instance, made a case which induced the court to grant an injunction; and a motion was made to dissolve it, on the grounds, among others :</p> <p>1. That the defendants, M'Vickar & Co. had answered fully, and denied the equity of the bill.</p> <p>2. That the matter on which the bill was founded, was available in a defence at law 5 that the complainants might have been admitted to show it in their defence before the referees; and that therefore, they ought now to be concluded.</p> <p>Preliminary to the examination of the first point, it may be well to remark, that its decision must, in a great measure, depend upon the forms of the court.</p> <p>I take it to be a settled rule, that where a bill is filed against several defendants, for a joint cause of action, and an injunction issued in consequence thereof, that the complainant is entitled to retain it, if the merits would warrant its issuing in the first instance, until the answers of all the defendants are in.</p> <p>There are many exceptions to that rule, and its application to each particular case, must depend upon the circumstances attending it.</p> <p>Here the complainants made a case by their bill, showing that the advance in question, was made under the influence, and in pursuance of a pre-existing contract between Cruden and Hopkins, undoubtedly in the capacity of agents, and in supposed conformity to the instructions of Cruden, their principal; for the bill stated, (and the fact was not denied by the defendants’ answer, the defendants disavowing any knowledge of the terms of the original contract,) that M'Vickar & Co. by its terms, were to make such advances, as agents for Cruden.</p> <p>The defendants’ answer admitted, that the sole inducement to the advance was those instructions, and to put the matter beyond all possible doubt, the contract now the subject of controversy between the parties, expressly purports to have been made by Oliver Wolcott & Co. in behalf of Jesse Hopkins, and John M'Vickar & Co. in behalf of George Cruden; and recites so much of the contract, as to identify it, to all the intents which had a bearing on the motion, with the one stated in the complainants’ bill.</p> <p>The advance was then an incident of the original contract, made by M‘Vickar & Co. in the character of agents, with the eventual replacing of which the defendants had no connexion nor any interest; ánd of consequence, the nature extent and modification of the credit given to Cruden, by the house of Phyn, Inglis & Co. or the exact form in which Cruden was to respond to the defendants, must be laid out of the case, as matters to which the complainants were neither parties nor privies.</p> <p>The only questions were; had the complainants shown that the defendant Cruden was an essential party ? and could his answer have either a direct or remote influence on the case of the present defendants ?</p> <p>Cruden was not only an essential, but in my view, the principal party. His contract was the subject of controversy ; his advance the subject of claim by the complainants ; and whatever complexion the cause might take in its progress, in that stage of it, and with relation to that question, I thought it a clear case.</p> <p>As to the 2d point.</p> <p>The defendants at law, I rather thought, could not there have availed themselves of the defence they set up before me ; and so thinking, I decided that point according to my impressions, at the time, leaving it open for a further discussion upon a final hearing, after all the parties should be brought in, if it should be then made a point. The complainants alleged in their bill, that they were unable, for want of sufficient proofs, or any confession or discovery, to show several facts material to their defence, and which they particularized, without a discovery, by the defendants, which has always been deemed a good reason for a resort to chancery.</p> <p>I was, therefore, of opinion, that the injunction ought to be retained; and that the defendants should take nothing by their motion, and should pay the costs of resisting it.</p>

THE respondents filed their bill in the court of chancery, as creditors of the appellant, Comfort Sands, for themselves, and all the other… Held: to ascertain by the verdict of such jury, when the indenture or deed bearing date on the thirteenth day of November, in the year of our Lord one thousand seven hundred and ninety-six, mentioned in the pleadings in this cause to have been given by the defendant Comfort Sands, to his daughter Sarah Maria Sands, for a lot of ground…